48 | Developments in Equal Pay Litigation 2026 ©2026 Seyfarth Shaw LLP statutory text and legislative history, concluding that the Legislature did not impose a good‑faith or “bona fide” requirement.325 The dissent warned that the majority’s interpretation could lead to “absurd and unintended consequences,”326 including incentivizing individuals with no interest in the job to apply solely to pursue statutory damages claims and potentially exposing employers to substantial liability based on a single noncompliant posting.327 Although Branson does not involve traditional equal pay claims, its implications for class litigation are significant. By interpreting “job applicant” broadly, the decision expands the potential size of pay transparency classes and illustrates how state pay transparency laws may define threshold terms in ways that facilitate large class actions. The class certification analysis can play out in unique ways under Title VII and its state law analogs. For instance, in Abbananto v. County of Nassau,328 the District Court for the Eastern District of New York certified a class pursuing sex-based wage discrimination claims even though the class consisted of both women and men. In that case, male and female Police Communications Operators (“PCOs”) and Police Communications Operators Supervisors (“PCOSs”) alleged that their predominantly female workforce was paid less than the predominantly male Fire Communication Technicians (“FCTs”) and Fire Communications Technicians Supervisors (“FCTSs”), despite performing nearly identical work.329 The court found that common questions bound the class together, even though the class was made up of both male and female PCOs and PCOSs.330 The court held that Title VII applies not just to those discriminated against directly, but also to those who suffer the effects of discrimination directed at others. “Under Plaintiffs’ theory of this case, Defendant's challenged system applies to—and therefore aggrieves—all, rather than just female, PCOs and PCOSs, creating common questions sufficient to satisfy commonality.”331 Statistics often play a critical role in class or collective certification decisions. For example, in Ahad v. Board of Trustees of Southern Illinois University,332 the court initially conditionally certified a collective action of female faculty physicians, but later denied plaintiff’s request for class certification of the same claims under the Illinois Equal Pay Act, Title VII, and the Illinois Civil Rights Act.333 While Plaintiff’s expert showed that female physicians were paid less at a statistically significant level than similarly situated male physicians the court held that this statistical disparity, by itself, was not enough to warrant class treatment. 334 Instead, plaintiff must establish the “glue” that can produce a common answer to the 325 Id. at *3-5. 326 Id. at *8. 327 Id. at *11. 328 Abbananto v. Cnty. of Nassau, No. 19-cv-1102(GRB)(JMW), 2022 WL 326982 (E.D.N.Y. Feb. 3, 2022). 329 Id. at *1. 330 Id. at *6. 331 Id. But see Haggan v. Google, LLC, No. 518739/2022, 2023 WL 7130792, at *3 (N.Y. Sup. Ct. Oct. 26, 2023) (denying final approval of class action settlement that combined gender and race-based pay discrimination claims: “Here, the proposed class representatives . . . have failed to demonstrate that their gender discrimination claims are typical of the proposed class and/or how they can effectively represent proposed class members with whom they lack commonality, such as Black, LatinX, Native Americans or Alaskan male [employer] employees with potential racial-based discrimination claims”); Miller v. City of N.Y., No. 15-cv-7563, 2018 WL 2059841, at *4-5 (S.D.N.Y. May 1, 2018) (dismissing the claims of a class of over 2,000 female school crossing guards who alleged they were paid less than traffic enforcement agents due to the “stark differences in training, job requirements, and job responsibilities” between the two positions,” noting that (1) traffic enforcement agents undergo ten times more training than school crossing guards; (2) they are full-time employees who can be required to work nights, weekends, and overtime, whereas crossing guards are part-time employees who work no more than five hours per day; (3) they have greater responsibilities, including issuing summonses and testifying in court; and (4) they work at different, often busier intersections and sometimes at night); Bloise v. City of N.Y., 768 F. App’x 103, 138 (2d Cir. 2019) (upholding Miller, concluding: “the [school crossing guard] and [traffic enforcement agent] jobs are not substantially equivalent, as [traffic enforcement agents] must fulfill more requirements, undergo more training, perform all responsibilities, and labor under different and more hazardous working conditions”). 332 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 3:15-cv-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017). The court was satisfied that plaintiffs had met their minimal burden to obtain conditional certification at step one of the process because all faculty physicians performed the same job duties involving patient, teaching, and administrative functions. Id. at *4. 333 Ahad v. Bd. of Trs. of S. Ill. Univ., No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sept. 12, 2018). 334 Id. at *9.
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